Tuesday, November 11, 2008

This will not be a "popular" post---indeed, it may cost me some loyal readers. But curmudgeons are entitled to that moniker only to the extent they speak the truth. What follows is, I promise you, the unvarnished truth---with perhaps a curmudgeonly edge to it; for that, I hope, you will be generous in indulging my plainspokenness.

I shall speak from the heart, tempered by a life devoted to the law. I know many who are gay, I share communion with gays, and I greatly respect the intellects of those gays I have gotten to know on closer terms. But I cannot respect what the demand for gay "marriage" is doing to our society. A decent regard for my fellow humans who are struggling with the issue demands that I speak my piece; so be it:

1. The “right to marry” cannot be an individual right. It requires two people to marry. But what the law recognizes as “rights” are always the property of individuals. So at the very outset, there is a disconnect in the claim to a "right to marry."

2. Regarded from an individual point of view, you do not have a right to marry someone else without that person’s consent. So immediately, your so-called “right” is completely restricted and limited by everyone else’s right to refuse to marry you. What kind of “right” is that?

3. In a similar way, any individual can file papers to incorporate, and so can be said to have a “right” to incorporate---but the corporation will need at a minimum two officers and two directors to be recognized as a corporation. So one's “right” to incorporate is restricted and limited by the right of everyone else to refuse to serve as a director or officer of one's corporation.

4. All right, so let’s speak about a couple who wants to get married. Can they be said to have a "right to marry"?

5. Generally speaking, as noted above, rights belong to individuals. The reason is that if you have a right, then by definition another person has a duty that corresponds with that right, and duties are owed to individuals. If, for example, you can be said to have a "right" to vote (because you are over eighteen and a citizen), then each other citizen has a duty to allow you to exercise that right, and to see that it is not interfered with.

6. So if a couple could be said to have a “right” of some kind, then there would have to be a corresponding duty owed by each citizen to that couple as a couple. Now an individual is easily recognized, so other citizens have no trouble in telling when they are denying the rights of an individual. But what about a couple? How are you supposed to know when what you are dealing with is a couple owed a duty as such, and not just two friendly individuals? For this and similar reasons, the law does not generally recognize any “rights” that are held by couples as such, or duties owed to couples as such. Duties are owed to individuals, because individuals remain individuals until they die.

7. Moreover, what would such a “right”, if it could be possessed by a couple, amount to? It would be a right that would extinguish itself the moment the marriage ceremony was performed---that couple, once married, could no longer be said to have a “right” to marry. So what kind of “right” could it be that exists only for the purpose of being wiped out? (The individual’s right to vote, for instance, comes into being each time there is an election; and voting in one election does not deny you the right to vote in the next---to the contrary, it ensures it. But getting married would most certainly mean you no longer have a “right to marry” again until you were not married, i.e., either divorced, or widowed.)

8. The very fact that a divorcee or a widow has a “right to marry” that you do not have as long as you remain married shows us that what we are talking about is not a right at all, but a privilege. A privilege is something you have to meet the qualifications for: if you meet them, you are granted the privilege, if you don’t meet them, you have no right to the privilege.

9. A married person thus has no “right” to the privilege to marry, while a divorcee or widow may be said to meet the qualifications to marry, in being single---but to marry whom? (Even a divorcee has no “right” to the privilege of being married to her brother, for example. This is why it is so unhelpful to use the word “right” in connection with a privilege.)

10. Thus if you get accepted to Harvard, you have met its qualifications, and you receive the privilege of attending Harvard. You have no “right” to attend Harvard (but you have a right to apply to Harvard---even if you possess none of the qualifications for acceptance). Do you begin to see the difference? Rights, in some context, can be meaningless (e.g., the “right” to apply to Harvard even if you have an IQ of 40), but privileges are never meaningless; they confer a status that is defined by the law.

11. In the same way, if you pass the driver’s test in your State, you are granted the privilege of a driver’s license. To speak of a “right” to a driver’s license that is independent of race, sex, age or sexual orientation is a misnomer: you have a “right” only to take the driver’s test, and then only if you qualify by being a certain age, are not blind, are able to read English, etc. A driver’s license is thus a privilege, not a right.

12. The qualifications for a privilege always have to be related to the privilege itself. Thus to obtain a driver’s license, no one cares whether you are gay or straight; that has nothing to do with the privilege of driving. But being able to see, and to read English, are both essential to driving. So these are made part of the qualifications for obtaining the privilege of having a driver’s license.

13. Are there qualifications for a marriage license? Most certainly: (a) each applicant has to be an adult; (b) not already married; and (c) the two applicants for any one license, which is unique in granting a privilege not to an individual, but to a couple, must be of the opposite sex.

Well, why is this requirement justified? What does the sex of the partners have to do with getting married?

14. All right, we are going to go back to basics here. Forget for a moment everything you have learned, or think you believe, about human relationships. In fact, let’s turn the question on its head. I would like you to engage in the following thought experiment:

Imagine a society in which homosexual relationships were the norm, and not the exception. Suppose that this society, like that in Orwell’s novel 1984, had completely eliminated the individual burden of child-rearing. All conception and child-raising functions were taken over by the State, which received a constant supply of eggs and sperm from the children it reared to adulthood. Men could live only with other men, and women with women, precisely so the State would not have to worry about individual couples bringing a rogue child into the world. Remember: this is the norm, so that no individual would even conceive of trying to make a lifelong partnership with someone of the opposite sex; if they ever tried it, the penalty would be death. (In fact, you could take the thought experiment even further, and hypothesize that this society had finally discovered the gene that made people gay, and thereafter ruthlessly eliminated all fetuses that did not possess the gene, so that the society was 100% homosexually oriented.)

My question is this: In such a society, would there ever evolve, of its own natural force and not by imitation with some other society, an institution which one could fairly call “marriage”?

In other words, would male pairs, or female pairs, in such a society ever be motivated to conceive of a relationship that bound them for life, in which they pledged to the other to be true “in sickness and health, for richer or poorer, until death do you part?” (I grant you readily that many couples might well choose to remain together for life, but what would they add---particularly with no-fault divorces---by making it a legally solemnized relationship which then required the trauma of a divorce to be free of it?) What possible advantage could be seen in such a relationship, given the particular society I have hypothesized?

If you are true to my instructions, and have put aside everything you thought you knew about human relationships, your honest answer would have to be: “No, there is no social reason why an institution such as ‘marriage’ would ever arise in such a society.” Fine: now let’s go back to the logical consequences of that conclusion.

15. It is, however, an historical fact that the institution we refer to as “marriage” did evolve---in a society in which heterosexual relationships were the norm.

16. So the logic of evolution tells us that that the emergence of such an institution must have had a certain “survival value”---that is, it ensured the survival of the species more than would have been the case without its existence. (This is, I’m afraid, self- evident; otherwise we would not be where we are now, able to entertain the idea whether gay “marriage” in this day and age makes any sociological sense.)

17. And now we are in a position to compare the two societies---the primitive, paleolithic (and, if you will, patriarchal) society in which marriage evolved historically as an institution; and the ultra-modern, technologically advanced society which is 100% homosexual and has no need of “marriage”, either to ensure the survival of particular lines (which is not an issue in the society as imagined, because there are no deliberately preserved lines whatsoever) or of the species itself.

18. In this comparison, I submit, the institution of “marriage” may be seen as necessary to the survival of a traditional heterosexual society (because the institution unquestionably evolved, and has led---thus far, at any rate---to that survival), while it has no function whatsoever to fill in the hypothetical purely homosexual society.

19. The only rational conclusion it is possible to draw at this point is that in the case of the demands for marriage as a “right”, in order to eliminate society's supposed “discrimination” of denying the privilege of marriage to gay couples, the demands themselves are guided, like that of the dog in the manger, by a confusion of roles. In Aesop’s fable, the dog would not allow the ox to come into the manger to eat the straw---but the dog itself could not subsist on straw. Yet the dog saw the ox as a rival, and used its bark (and threatened bite) to intimidate the ox away from what only the ox could in the end make use of. The moral of the fable was: "People often grudge others what they cannot enjoy themselves."

20. So we have gay couples demanding that they be allowed to qualify for the privilege of “marriage”, without regard to their sex or sexual orientation, even though such a "marriage" would add nothing to the rights they now enjoy already, and would not advance the preservation of the society that extended them such a privilege. As our thought experiment shows, they cannot want marriage for anything it will do for them, over and above what their own feelings for each other already do, to enhance their relationship. This is especially the case since, with the law finally passed by the California legislature in 2005, they have complete and full equality of rights with those of married couples. [UPDATE 11/24/2008: To complain that the passage of Prop. 8 prevents same-sex couples from receiving the "benefits" of being married under federal laws is to misunderstand the nature of our federal system. The federal Defense of Marriage Act defines "marriage" as between a man and a woman for purposes of federal law, and nothing California enacted could change that. See this post for a fuller explanation.]

I conclude that the expressed desire of gays to be allowed to enjoy the state-conferred privilege of “marriage” as their "right"can be, I am sorry to have to say, only a ruse. For if it were just a case of gays desiring greener pastures, then the foregoing argument would be dispositive, and no gay person would wish to argue for the “right” to marry on the ground that “it looks better than a civil union.” But (and based on the recent demonstrations, I defy you to come forward with even one example) there will not be a single activist homosexual who can be convinced, say, by the foregoing argument that the supporters of Proposition 8 actually have a rational (rather than hate-filled, as most are suggesting) basis for their vote. No, the extremely high level of emotion displayed tells me that there are other reasons at stake here---reasons that can only incidentally have anything to do with the enhancement of gay relationships.

The “gay marriage” movement is thus based on ulterior motives---perhaps having more to do with how they see themselves, and how they think others see them, than with any concern for the role that marriage actually plays in a society, based on how it actually evolved. It has gotten as far as it has by confusing what is a “right” in the eyes of the law with what is actually a privilege, and by persuading everyone that there is a right here which is being denied, unfairly (and hatefully) denied. But if what is involved is not actually a "right," then the entire platform of justice is removed from the dispute. We are back to talking simply whether there is a rational basis for society to decide that only certain people may marry---not brothers with sisters, not children with adults, and not men with men or women with women.

I agree that privileges must be rationally based in order to continue to have legal protection and definition. But I have seen no argument to date that shows me that the definition of marriage as given in Proposition 8 is not rational. (To argue, as did four members of the California Supreme Court, that the definition is "discriminatory" is legal flimflam, as I have demonstrated with the series of propositions set out above. Grant that, and its "unconstitutionality" follows as a matter of course.) But to call a privilege "discriminatory" is to say nothing at all. Privileges have to discriminate, since they entail the drawing of lines. If the right not to be discriminated against trumps the right to define a rationally based privilege, then there can be no privileges at all---and that is the definition of anarchy.

If we cannot maintain that basic distinction in our society, if we are going to allow emotion to override it, then we richly deserve the chaos that will ensue.

31 comments:

Mr. Haley: Excellent piece. Have you considered writing something similar to submit as a guest op/ed article for a local newspaper? I have heard that you live near Sacramento, and the Sacramento Bee accepts guest op/ed pieces.

Thank you for your comment, James. I am not sure whether the Bee would be that receptive to this viewpoint, even as a guest op/ed. (As an experiment, I Googled the terms "Sacramento Bee" and "Proposition 8" together. Link after link showed articles written with the very same inflammatory emotional tone that I am trying to defuse with this post.) If I had some connection on the paper, it might work . . . hmm.

Again, thanks for leaving your comment. If at least one other person can see through all the hype and emotion of the gay marriage appeals (did you catch Keith Olbemann's performance over at the Preludium blog?---see the link in my sidebar), the post will have accomplished what I hoped for it.

I do encourage you to submit this for publication. As well as the Sacramento Bee, think about the San Francisco Chronicle. They may be over-blessed with op-ed submissions in support of same-sex marriage and may need some counterbalancing pieces.

I am wondering if it would make sense to add some reference to the inter-racial marriage case often referred to as a precedent for gay marriage.

Anglican Curmudgeon, An excellent piece. However, I would encourage you to carry your analysis a bit farther. Since we see no societies in history that instituted gay marriage, we must conclude that its survival value is negative and strongly so. That is, those societies that establish it perish and do so rather suddenly. It is incredible chronological arrogance to think that modern Western society invented this concept. It must have been tried before and, from the lack of historical evidence, failed rapidly and dramatically.

I normally enjoy the reasoning in your articles, but this one makes little sense to me. Points 1-13 can be used to define away the rights of any two persons to marry, without regard to gender, and therefore really don't do much to support the case that only opposite sex couples may marry.

Point 14 -- if I understand it correctly, and there is ample possibility that I do not -- posits a bizarre world in which there is no procreation (and therefore lasts exactly one generation), all relationships are homosexual, and in which you assert there would be no marriage. Points 15 and on rely on this counterfactual to say that marriage did evolve in a world that didn't look like the one in point 14, and therefore should only be opposite sex. I confess that I'm unpersuaded by that argument, although I have no firm opinion on gay marriage.

I think it is just as useful to visualize a world in which persons are encouraged to engage in healthy, loving relationships unencumbered by administrative limits placed by those who are not ready to admit that alternative relationships may be valid.

Rick D, I fear you did miss the main line of argument in the post. The reason that points 1-13 may be "used to define away the rights of any two persons to marry, without regard to gender," is precisely because there is no such "right to marry," when the word "right" is understood in its proper sense. No one---not straights, not gays, not blacks, not whites---has a "right" to marry anyone. Instead, if they meet society's qualifications, they may be granted the privilege of marrying, by obtaining a license from the State. The distinction is fundamental, and it is crucial to the current dispute, which is being argued on the wrong territory.

The society I hypothesize in point 14 is indeed permanent: it generates new babies, and new generations, all the time by harvesting sperm and eggs from the children which the State is rearing, just as in George Orwell's nightmare world. It just does not allow sex between genders, so that it controls who is born. And in such a society, marriage would serve no rational or evolutionary function, and so would never come into being as the institution it is in our society.

If you would like to read a much more in-depth treatment of the role that marriage plays in a society such as ours, I suggest you invest the time required to read this article, which lays it all out. While your sentiments are admirable, and I do not mean to slight them in the least, Mr. Shulman explains better than my brief post why they should not be allowed to carry the day.

Thank you, as always, for stopping by to comment. Sometimes I think the comments are where we really come to grips with the issues addressed in this blog, and this one of yours would be no exception.

Dr. John, I commend the Shulman article to you as well, for he makes your point about the negative evolutionary value of gay marriage. At bottom, as he shows, marriage evolved/was instituted for the protection of women, and those who want to reduce it to an empty contract for sex would remove the very element of protection that is so essential for the procreation and rearing of children. Once that is removed, society no longer has any kind of assured future.

I would add my voice to those encouraging you to submit this as an op/ed essay. It is a beautifully reasoned response to the mischaracterizations being perpetrated by the opponents of Prop. 8, and their ideological companions.

I agree with you entirely that the courts went wrong from the moment that they ruled that marriage is a right.

However, I think that you may have missed something of the reasoning of the prior rulings and should go back farther than you do into the assumptions behind them. I believe that in many of them, the courts used the legal overturning of racial intermarriage bans as their precedent, as Perpetua mentioned.

In doing so, the courts refered to the constitutional right to equality and reason from there to equality of treatment. From there they conclude that government cannot deny to one group what is granted by that same government to another group when in effect, the only difference between those groups is inborn and cannot be changed.

In other words, the assumption is that a gay person cannot help acting the way they do anymore than a black person can help being black skinned.

I have said many times that this is the assumption that underlies the whole sorry mess and this is the assumption that must be corrected in order to save marriage.

I have wondered for a long time if a legal distinction could be drawn between an inborn behavioral trait and an inborn physical trait. In my mind, a behavior, especially a sexual one, no matter how inborn, can be controlled where a physical trait like skin color cannot. If someone could make the case that society has the right to decide which behaviors are priveledged (which is your argument already) then it may decide that some behaviors disqualify a couple from being legally married.

Not being a lawyer, I can't say whether a legal case could be made for my argument. But I keep putting it out there in case someone who is a pro-marriage lawyer sees some merit in it.

Do you think as I do that by combining the two arguments, yours and mine that both become stronger? I think we could put a much finer point on why gays can be barred from marriage but two people of different races cannot be.

How do you like this article that was published in last Sunday's San Francisco Chronicle?

"Proposition 8 has passed, denying to some the right enjoyed by other citizens in California, the right to marry. Now, the central question for the courts to decide is: Are gays in California equal, or can members of certain churches declare them constitutionally inferior?

The approval of a constitutional ban on gay marriage raises troubling but age-old issues concerning the lines between religion and government. Before the founders of our country separated church and state, there were hundreds of years of turmoil caused by one religion dominating the government and using it against nonbelievers.

In the aftermath of Tuesday's vote, do gays and lesbians in California have a reason to believe that they have been abused, discriminated against and relegated to a separate-but-equal status?

Yes, and that's why this fight is far from over. There will be a challenge under the U.S. Constitution. In the 1960s, the U.S. Supreme Court struck down a California constitutional amendment that limited fair housing on the grounds that prejudice could not be put into a state Constitution.

No one can forecast the outcome of this next fight, but there is bound to be some fallout that may harm those religions that so vehemently insisted that their beliefs be placed in the California Constitution. All religions require tolerance to flourish, but in Proposition 8 some religious groups aimed at and wounded gay people in California.

The drafters of the U.S. Constitution had a brilliant, experienced view concerning the importance of drawing the lines to protect religion on the one hand and civil government on the other. They put those lines in the First Amendment to the U.S. Constitution. Today, those lines are very relevant.

Government may not attack religion. Californians who have religious beliefs concerning the proper scope of marriage may exercise those rights as they see fit. Churches have always been able to proceed as they wish concerning marriage ceremonies. There was no mandate to suppress religious beliefs. This should be obvious to everyone in California because of our tolerance of all religions.

That the supporters of Proposition 8 were motivated by religious beliefs cannot be denied. Now the religious beliefs of some Californians are in our Constitution and, until overturned, govern us all whether we like it or not.

The other branch of the First Amendment is equally important. The state may not establish a religion. The state may not take principles of religious belief from a religion, any religion, and establish it as the law applicable to all. This line establishing the double branch of protection of religion on the one hand and no establishment on the other was arrived at after hundreds of years of turmoil.

Historically, marriage was used as a method of oppressing a despised group. These lessons of history are relevant to reflect on today. In Ireland, for 150 years, the penal laws provided that no Protestant could marry a Catholic.

Much more recent in the United States were the rules against marriage between a black person and a white person. These were struck down by the U.S. Supreme Court in the 1960s and the California Supreme Court in the 1940s. Using the civil marriage ceremony as a method of expressing governmental disdain toward a particular group is as old as the Sierra Nevada. It has been an assault on tolerance.

Finally, marriage is a fundamental right in constitutional analysis. There are very few things in life more important than the ability to choose one's partner. Marriage is not just a word; it is a status, a state of mind, a way of being. Look in any direction and you will see examples of the people's respect for the institution of marriage.

A large group of Californians has now been denied that fundamental institution. These folks are our neighbors, our friends, our colleagues and our relatives. The constitutional promise of this state is, as the California Supreme Court held, that they are equally protected in the enjoyment of rights by all Californians. But the voters have spoken.

Now it will be up to the courts to explain whether equality is real - or just an illusion. I would not wish to be the one to justify this vote to a gay woman going to Afghanistan in the military, to a gay police officer who risks everything so we may be safe or any of the other thousands of gays and lesbians in California who contribute so much to our culture, our advancement and our well being.

I cannot square this vote with my view that Californians are decent, accepting and tolerant. But I know that the gays and lesbians of California, like the oppressed Catholics of Ireland who lived under penal laws, will fight this visible, constitutional, embarrassing injustice until it is no more. And when that day comes, we will live in a better state."

James Brosnahan, author of the "Trial Handbook for California Lawyers," is a senior partner at the Morrison & Foerster law firm in San Francisco.

Thank you to all those who have suggested that this post be turned into an op-ed. On further checking, I have found that the Sacramento Bee limits submissions to just 650-850 words, while the San Francisco Chronicle species 650 words maximum.

This piece has 2,364 words, so it is disqualified before it starts. I have edited pieces before, but not by throwing out three out of every four words. I am sure it could be done, but I am not sure I would like the result.

peggy38, thank you for that comment. Arguing from precedent has a value only when the case truly is a precedent. The interracial marriage cases to which you refer are not, in my view, a precedent for gay marriage.

Traditional marriage is, exactly as Proposition 8 has it, between "one man and one woman." Look at that definition carefully: does it say anything about skin color? Thus States that added to the definition by making race a further factor were, as you say, discriminating against those races.

However, the definition also says nothing about sexual orientation. The gays are not complaining that some States have added a further factor of sexual orientation to the definition; they cannot argue that marriage is defined to exist only for heterosexuals. (Remember, +V. Gene Robinson shows us that gays, too, are free to marry under the traditional definition.) No, what they want to do is change the definition itself so that it would read, instead of "between a man and a woman," "between one person and another person." This has the effect of removing gender as the foundational basis for defining marriage, and is an entirely different proposition from removing the prohibitions of marriage based on skin color.

Thus for purposes of the issue at hand, there is no need to delve into whether homosexuality is genetic or acquired behavior (or somewhere in between). Behavior, or orientation, is simply not relevant to defining what marriage is. (You also might like to read the article by Sam Shulman that I linked in my answer to Rick D above.)

The courts thus far have engaged in a simplistic analysis that fails to address the essential nature of what marriage is, and why it evolved as it did. The California Supreme Court jumped on the bandwagon, and indeed went further than any other court has to define marriage as an individual's fundamental right. The people have now taken that issue off the table by enshrining the definition of marriage in the Constitution itself. Whether the activist judges will honor that decision remains to be seen, but the only way they can undo it is by ignoring the crucial difference between a right and a privilege that was the subject of my post.

T.U.&D., that article by Mr. Brosnahan was one of the spurs to my writing this post. He exhibits exactly the reasoning flaws of the majority on the California Supreme Court, and for that reason I hope they don't make him a judge.

(By the way: I pasted his article into my word processor, and it counted 802 words. My best efforts to condense this post into a short op-ed thus far still leave me with just over 1200.)

OK, James, Perpetua, Martial Artist, et al.---the deed is done. Hacking and hewing away, I finally reduced the main blog post to 846 words, and submitted it on the Sacramento Bee's form.

Later I received this automated response:

"Thank you for submitting an opinion piece for consideration in The Sacramento Bee.

"Because of the high volume of submissions, you will not be contacted unless The Bee chooses to use the material. If you have not been contacted within five business days, you may assume that the piece was not selected for publication. We appreciate your understanding."

Your comment seems to imply that same sex attraction is inherently, to use your word, inborn, whether behavioral or physical. There is no scientific evidence of which I am aware that this is the case. Hence, I would suggest that, while of some passing interest, the question does not reduce in any way to the difference between the physical and behavioral, but rather to behavior which is inborn as opposed to behavior which is not inborn but, rather, a response to postnatal stimuli.

There are some liberal European societies have allowed gay marriage for a period time.

The results are worth studing.

Those countries have seen an overall drop in the marriage rate, an increase in divorce and out of wedlock births and abortion.

One could conclude that lowering marriage standards results a lower respect for the institution of marriage and family. The resulting increase in broken families places a greater social welfare burden on the state.

Hi. I wanted to reply to your article, but I ran out of room in tho comments section. I have posted my response in my very occasional blog here -- http://drzaus.blogspot.com/2008/11/varnished-truth.html

Dr. Zaus, thank you for stopping by this site. I am glad if this post was the spur for you to add to your (infrequent) blog posts. That's what we do here---we take the time to explore issues in depth, through reason and sound logic, and with a view always to the law. Your contribution, and those of the others who comment here, are an essential part of this process.

I have visited your blog to read your reply. While I thank you for respecting the sentiments behind my original post, I do think that you have taken some of my remarks out of context, and read into them more than I ever said or intended.

At the same time, I think it worthwhile to engage in the dialog you have begun. Therefore, as time permits, I shall post a rejoinder to your response on this site, and then we will let the other readers here comment on our respective views.

Thank you again for visiting this site, and for taking the time and effort to respond in depth.

Exodus 20:12 Thou shalt not commit adultery. If we check cross references we see where fornication, man lying with a man & etc. all fall in this same domain of sexual sin. So if Homosexuals can be "married" they won't be committing this sin (at least that may be what they may think). I do not know of anywhere that my Lord and Saviour Jesus Christ said that we are not to follow the Ten Commandments. The Ten Commandments are the basis of our laws. He told us to follow the law, be forgiving, to love one another and to serve our God with all our Heart, Might Mind and Strength. So those who do not follow the Ten Commandments are failing to serve their God. So homosexuals you still do not win in a spiritual aspect, you are still breaking or trying to pervert the laws of God to suit your own means.

Willie DG, thank you stopping by, and I am glad that you liked this post. I would urge you to read my earlier posts on how our Lord treated sinners---not as people to be condemned or judged (even by Him, while He was in His human form), but as people to be welcomed for what they were, and then urged, out of the love they had found for Him, to give up their ways and follow a new life. (You can read them here and here.) We, all sinners ourselves, thus cannot set ourselves up in the role He declined to assume here on Earth during His brief life, but have to try our best to emulate His example for us. At the same time, we must firmly withstand all attempts to undermine our beliefs based on false claims of "rights", no matter from what corner they come.

To James, Perpetua, Martial Artist and the others who were so kind as to urge the submission of this piece as an op-ed: more than five days have gone by now since I submitted it to the Sacramento Bee, and (as they warned---see my earlier comment) I have not heard anything further from them. Guess it was not to their liking.

Your lengthy rationales will be shown to be flawed as time goes by.The only acceptable, and inevitable, outcome will be the ruling of the California Supreme Court:

"These core substantive rights include, most fundamentally, the opportunity of an indiviual to establish - with the person with whom the individual has chosen to share his or her life - an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage."

There is no mention of sexual orientation or gender as a qualifier for marriage, simply the rights of an individual, all individuals.

No, St. James, there is no mantion of a "qualification" of gender in the Supreme Court's decision, because the majority mislabeled what is actually a privilege as a "right." Rights by definition belong to individuals without qualification, because that is the essence of a true right---the right to freedom of speech, to freedom of association, to a fair trial, etc. (Notice that our most famous catalog of individual rights, the Bill of Rights, does not include a "right to marry".)

I agree that the Supreme Court will decide what its majority wants, regardless of my arguments. But their calling a privilege a "right" does not make it so, anymore than if they decided to call a horse with a feather pillow on its back a "small bird". And whom do you want defining the fundamentals of society, anyway---the people as a whole, or four people in black robes? What makes the four of them more "right" than the three who disagreed? Whose argument was the more flawed in terms of the proper analysis of basic legal concepts, like the difference between a right and a privilege?

Just finished reading the small bird link. Well chosen illustration of your point. And you are a funny curmudgeon!

Over time, the common people's respect for their judges can be undermined when the judges disrespect the common sense of the people. The California Supreme Court is playing with fire on this one. What happens when the people no longer respect the courts of the land?

I certainly do not want the majority to define the rights (orprivileges) of a society. I would much prefer to leave it to a courtthan to the intellectually unwashed multitudes, who can almost always be counted on to be prejudiced against a minority, especially one they have been taught to vilify from time immemorial. Would you want the majority to have a right to dictate your religious beliefs?

Whether a marriage is a right or a privilege is just semantic juggling.

"I certainly do not want the majority to define the rights (or privileges) of a society."

Well, St. James, if your view had prevailed in 1787, there never would have been a Constitution. And if in your view the Constitution was adopted back then by a minority of privileged white males, then you still have to deal with the fact that it has been amended by a majority of the States and both Houses of Congress some 27 times since then, giving first blacks and then women the right to vote (and to amend it further).

I am unable to agree with you that it is better for judges who cannot bother to distinguish between a right and a privilege to tell us what our rights and privileges are. What if they should one day decide to define abortion as a privilege and driving as a right?

I am glad that you feel free to comment here. I did not set out to win any popularity contests when I wrote this post, and I think you have shown similar fortitude in your comments.

I never cease to be at least somewhat amazed at progressives who start from the assumption that they are so much more intelligent and/or insightful than, as the commenter self-styled as St. James puts it, "the intellectually unwashed multitudes, who can almost always be counted on to be prejudiced" yet seem unconscious of the superciliously prejudicial attitude they display in stating that judgment, let alone in the assumption that anyone who is reasonably intelligent must certainly agree with their assessment. It is a virtual hallmark of the beast.

In writing this, I do not mean to imply that the phenomenon on which I am remarking is limited to those of the progressive persuasion, but simply that every adherent of that school of thought whom I have ever encountered has displayed it to one evident degree or another.

Another virtual hallmark of the beast, as you call it, is blatant hypocrisy.

Imagine, if you will, that the results of Proposition 8 had been reversed; namely that Proposition 8 had lost and the same-sex marriage advocates had won at the ballot box. Then imagine, if you will, that traditional marriage advocates refused to accept this decision by the electorate and began to badger and lobby the judiciary that the majority vote was being tyrannical towards the minority of traditionalists.

The gay marriage advocates would loudly proclaim that their opponents are sore losers, and that it's plain to see that these sore losers are simply trying to manipulate the courts.

You will get no demurral from me on that point. Although, in fairness, I would again emphasize that while that phenomenon is also not limited to those on the progressive end of the spectrum, it is, as you say, yet another hallmark.

St. James, thank you for the link to that interview with Richard Rodriguez. I found his adherence to Catholicism fascinating in light of his opinion that churches feel threatened by the decline in traditional marriage. In his belief that the patriarchal character of monotheism is "challenged" by the rise of first, feminism, and now, homosexuality, I see a case of projection at work: I think he is ascribing to traditional religion the motives and reactions that he himself experiences in dealing with his own family and the Church which he cannot bring himself to leave.

There is no question that the traditional Church, and the monotheism on which it is based, is patriarchal, but that does not begin to tell the story. Since I took the time to read the article that you linked, I would hope that you might find the time to read the article that I linked in my comment above. It explains in detail, far better than I could, how the institution of traditional marriage evolved in (patriarchal) society precisely for the better protection of women. The irony is that the feminists and the gays who want to bring down that institution, and who (like Rodriguez) see hope for themselves as it crumbles, are undermining the ability of many other women to find any kind of long-term stability which they traditionally have depended upon in order to feel safe about starting a family. (Believe it or not, as you will, but there are a good deal of women out there who want to have children and bring them up with a father.)

As marriage becomes less constrained and more open, the Shulman article explains, one consequence is a decline in the birth rate (see Fig.2 on p. 5), accompanied by a rise in both illegitimate births and in abortions as a percentage of the pregnancies that do occur: that is, more pregnancies today are being voluntarily terminated than ever before, while of the babies that are brought to term, more of them have no fathers to help raise them once they are born. And if the downward trend in birth rate continues here as it has in Europe and Japan, we will join the ranks of the societies that are self-extinguishing.

But giving an answer to Mr. Rodriguez is not the point of my post. All I was trying to point out is that (a) it does not help to confuse the issues by speaking of marriage as a "right", when it is a privilege; and (b) as a privilege, society has a very rational basis for defining it as it traditionally has; there is nothing inherently prejudicial, or discriminatory, or hate-filled, or narrow-mindedly pious, about such a stance. I do not deny that there are those who are that way, but I am not defending them in the slightest---just as I am not willing to hand over the debate to those who make the loudest noises about their supposed "right" to marry.

"The conflict between formal justice and formal equality before the law, on the one hand, and the attempts to realize various ideals of substantive justice and equality, on the other, also accounts for the widespread confusion about the concept of "privilege" and its consequent abuse. To mention only the most important instance of this abuse-the application of the term "privilege" to property as such. It would indeed be privilege if, for example, as has sometimes been the case in the past, landed property were reserved to members of the nobility. And it is privilege if, as is true in our time, the right to produce or sell particular things is reserved to particular people designated by authority. But to call private property as such, which all can acquire under the same rules, a privilege, because only some succeed in acquiring it, is depriving the word "privilege" of its meaning."**************************({Page 173} regarding: "collective freedom" and "planners for freedom"; and promising: "collective freedom for the group")

In this particular case the perversion of the meaning of the word has, of course, been well prepared by a long line of German philosophers and, not least, by many of the theoreticians of socialism. But "freedom" or "liberty" are by no means the only words whose meaning has been changed into their opposites to make them serve as instruments of totalitarian propaganda. We have already seen how the same happpens to "justice" and "law," "right" and "equality." The list could be extended until it includes almost all moral and political terms in general use.

If one has not one's self experienced this process, it is difficult to appreciate the magnitude of this change of the meaning of words, the confusion which it causes, and the barriers to any rational discussion which it creates. It has to be seen to be understood how, if one of two brothers embraces the new faith, after a short while he appears to be speaking a different language which makes any real communicatin between them impossible. And the confusion becomes worse because this change of meaning of the words describing political ideals is not a single event but a continuous process, a technique employed consciously or unconsciously to direct the people. Gradually, as this process continues, the whole language becomes despoiled, and words become empty shells deprived of any definite meaning, as capable of denoting one thing as its opposite and used solely for the emotional associations which still adhere to them."

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